1. This is a Reference by the learned Additional Sessions Judge of Aligarh. It has been found by the Courts below that Sia Ram complain-ant was put in possession of the southern portion of the house in dispute by the Civil Court Amin on the 10th of December 1922, in pursuance of an appellate order of the Civil Court. In spite of the possession having been given to Sia Ram as found by the Courts below the accused again took possession of the house for ciblyon the 29th of December 1922. It has been found that force was used and Sia Ram was intimidated and was prevented from getting in to the house. Accordingly the accused have been convicted of the offence under Section 448 ' of the Indian Penal Code and there is no question of interference with that order,
2. The Trial Court however omitted to pass any order under Section 522, Criminal Procedure Code. The Appellate Court after upholding the conviction and sentence directed that the Trying Magistrate should restore the rightful person, i.e., Sia Ram again into possession under Section 522, Criminal Procedure Code. The learned Additional Sessions Judge has referred this case to the High Court with a recommendation that the latter portion of the order of the Appellate Court was ultra vires and should be set aside. Under the old Code of Criminal Procedure there was considerable doubt as to whether an Appellate Court had power to pass an order under Section 522 of the Code of Criminal Procedure where a Trial Court had made no order at all. Had some order been passed by the Trial Court under Section 522, Criminal Procedure Code, then the Appellate Court acting under Section 423, sub Clause (d) of the Criminal Procedure Code had power to make any amendment or any consequential or incidental order that might be just or proper and thus to interfere with that order. Where however 'the Trial Court had not made any order under Section 522, Criminal Procedure Code, it was certainly very doubtful whether the interference by the Appellate Court could come within the expression ' amendment or any consequential or incidental order that may be just and proper'. In the case of Bhaghat Shaha v. Siddique Ostagar 16 Ind. Cas. 176 : 39 C. 1050 : 16 C.W.N. 811 : 13 Cr.L.J. 608, followed in Muhammad Din v. Emperor 48 Ind. Cas. 510 : 20 C.L.J. 20 : 1 P.W.R. 1919 Cr : 33 P.L.R. 1919 : 19 P.R. 1919 Cr it was held that the Appellate Court had no jurisdiction to make an order restoring possession of immoveable property where the Trial Court had not made any order at all. These cases are in no way inconsistent with the rule of law laid down in Manki v. Bhagwanti 27 A. 415 : A.W.N. (1905) 19 : 2 A.L.J. 64 : 2 Cr.L.J. 24 where a Trying Magistrate had himself made an order. I, therefore, agree with view of the learned Additional Sessions Judge that the Appellate Court had in this case no jurisdiction to make the order in question.
3. The case however is a very gross one and in the absence of a restoration of possession the complainant will be forced to institute fresh proceedings in a Civil Court, soon after a successful litigation. This is a fit case, therefore, for interference by this Court.
4. Under the new Code of Criminal Procedure (as modified and brought into effect on the 1st of September last) the High Court under Section 522, Sub-clause (3), Criminal Procedure Code, has in a reference or revision power to make an order even though no such order might have been made by the Trial or Appellate Court.
5. Accordingly I set aside that portion of the Appellate Court's order which directed restoration of possession to the complainant and in place of it make a fresh order directing restoration of possession of that portion of the house which had been delivered over to the complainant in pursuance of the Civil Court decree.